16 December 2009

DU Cyber Rights Conference Recapped

The University of Denver's had a conference this past November on Cyber Civil Rights, mostly devoted to how to address various forms of online misconduct, mostly harassment. Professor Eric Goldman has a detailed recap of the conference at his Technology and Marketing blog. What was discussed?

Whether online based harassment is as serious as it was in schools and the workplace when legal remedies were created for sexual harassment in those contexts, and whether women are disproportionately harmed by this online harassment.

Are "cyber mobs," perhaps even if they lack central organization, the equivalent of the KKK?

Are there viable technical or legal ways to curb online harassment? In particular, given the strength of online anonymity, is it possible to identify and hold accountable online harassers with even minimal sophistication (or blind luck that makes them impossible to identify)?

What about the online context makes harassment there different from other types of harassment?

Is a non-monetary remedy (e.g. deletion or identification of the harasser) sufficient in many case, and if so, should the standard for relief be lower?

Should people who create contexts that facilitate harassment but aren't harassers themselves have some form of liability?

Analysis

My personal sense is that interactive communities are routinely using technologies that make it possible to identify harassers and shut them down in their forums (and often a network of forums when the identification task is outsourced). So, self-policing may solve much of the problem.

I also don't think that this problem is easily succeptible to a one size fits all solution. Before one starts crafting a remedy, one needs a taxonomy of the different forms that online misconduct takes, because different forms of misconduct call for different remedies. Online misconduct can include from "outing" and "sexting," defamation, theats, taunts, carefully timed "button pushing" distractions, overwhelming someone with e-mail or website interest (possibly with denial of service or just annoyance as an intent), identity theft, and more. What makes sense for an online political forum does not necessarily make sense for e-mail harassment or an anonymous website devoted to attacks.

Also, isn't there a "words can never hurt me" element to most of these forms of harassment? In other words, is the harm usually reputational or emotional? If so, can social norms limit the harm? If women suffer more from harassment, is that something that can be solved by training women to use the coping methods that men apparently use with success, the way we started training women to take physical self-defense measures a generation ago? After all, most women aren't headed towards a harassment free or internet free society any time soon, and the Internet really is a more difficult place in which to hold people accountable than real world employment and school contexts.

The Case For A Frank Society

Reputation as an inescapable influence on our lives is relatively new to American law. Our record keeping has historically been fractured and incoherent. Moving further out into the frontier to escape the reputation you left behind has been possible for much of our history. But, we have now joined most of our peers in a world where reputation, pieced together through criminal records, court records, credit records, online search engines and other online tools to assemble dossiers, is increasingly inescapable. How will we respond as a society?

Will we take the path of Japan, where reputation is of paramount importance, and extortion centered around preserving reputation is commonplace. We already see it in the criminal justice system, where middle class people routinely waive rights and go to great lengths to secure deferred prosecutions and other resolutions of misconduct charges that avoid a criminal record and the collateral consequences (legal and socio-economic alike) of a criminal record. We also see it in disputes over small debts where they money at stake may matter less than the impact that the dispute has on a credit record, which creates a barrier to settlement. Already, we have reached the point were no defendant in a civil action feels comfortable settling, no matter how large the amount in controversy, without a mutual disavowal of any wrongdoing.

We could, however, take a different path, call it a "frank society," that acknowledges that ordinary people do not live the perfect lives that they are socially presumed to live, and set reputational expectations lower.

Maybe the porn shoot you did when you were twenty is really no big deal when you are medical resident at thirty (a real Denver case that resulted in the resident losing her job although she had done nothing wrong at work). Maybe it doesn't really matter if an employee privately watched porn or posted personal material on Facebook at work. Maybe a DUI, or an episode of academic probation, or a youthful vandalism conviction, or a treatable mental health condition, or marital stumble should be considered par for the course. Maybe it is o.k. to say that your sorry and that you made a mistake, rather than denying all wrong doing in a settlement. Maybe absolutely perfect credit shouldn't be that important. Maybe preserving a resume in which you have never been fired shouldn't be as big a deal as many people feel that it is now. Maybe the possibility of sealing a juvenile delinquency record isn't as important as the due process protections, public conduct lessons, and protection of those who deal with juveniles who have newly reached the age of majority after having serious juvenile records that flow from a public juvenile justice process.

Why should we care about a pro-golfer's sex life, hardly a position of public trust, when the French and Italians don't make big deal when it is widely known that their most senior political leaders are having affairs? Maybe we should try to put in a place a world where scandal is not a leading method of removing political opponents from office, because the electoral system seems incapable of removing bad politicians from office based on the political merits.

One of the strategic triumphs of the gay rights movement was to embrace the power of admitting who you are in public without shame. Others have emulated this idea. For example, rape survivors have embraced the concept that it is not shameful to have been raped. Divorce has likewise lost much of its reputational sting, as it has become both common and essentially impossible to hide from others for any prolonged period. Those who are divorced can acknowledge this fact shamelessly, or wallow, but they can't hide. And, when enough people are shameless, the reputational sting is muted.

The fight to preserve anonymity and privacy in our society may be a losing battle, even if it isn't a completely lost struggle online. Transparency seems to be prevailing over privacy. The average person today probably has less privacy than the average person who went thought a detailed background check a few decades ago.

There are real social costs to a society based on the false inference that the truth about people's lives is as flawless as it is usually presumed to be. The truth of the matter is that almost all of us have, at some point or other, done something embarassing or something that might harm or personal reputations. As it becomes increasingly difficult to cover up anything that anyone else is interested in discovering, and starting over is increasingly hard to do, we as a society need to develop more tolerance for imperfection.

The attitude can go beyond personal lives as well. Lots of what the government keeps secret is embarassing, but not operationally very valuable for very long. Maybe we'd be better off getting more of this dirty laundry aired out, rather than letting people guess at what it involves. There will always be a need for some secrets, at least in the short term, but secrecy encourages corruption and abuse.